The Day the Rule of Law in Canada Failed, and the Day It Almost Did

Jan 30, 2024 | Freedom Forum

By Barry W. Bussey


Commentary as first appeared in The Epoch Times

The truckers’ Freedom Convoy of 2022, I maintain, ignited Canadians for the long haul. So it should, if for no other reason than the Canadian re-awakening to the ancient concept of the rule of law.

As the Hon. Brian Peckford has been reminding us over and over again, we must pay attention to the preamble of the Charter of Rights and Freedoms: “Whereas Canada is founded upon principles that recognize the supremacy of God and the rule of law.”

The rule of law stands for the basic premise that all are equal under the law. Even the king is subject to the law. In 1998, the Supreme Court of Canada opined that “the rule of law lie[s] at the root of our system of government.” The court observed three major aspects to this principle: first, “the law is supreme over the acts of both government and private persons. There is, in short, one law for all.” Second, the legislative laws are to be ordered to preserve the rule of law. Third, “the exercise of all public power must find its ultimate source in a legal rule.”

The exercise of all public power must find its ultimate source in a legal rule. Let that sink in. Now consider the government’s invocation of the Emergencies Act on Feb. 14, 2022. To exercise the most draconian power available, the government had to follow the legal rules as established in the act itself. That required the government to meet the very high threshold to invoke the act—was there a “national emergency” and was there a “security threat to Canada”?

Remember, last year Justice Rouleau of the Public Order Emergency Commission decided “reluctantly” that the government reached the threshold to invoke the act. Rouleau was not making a legal decision, but a political one. He was not overseeing a court hearing—it was a political hearing meant to discern what political lessons may be learned from the fiasco. He had no business to even make the determination he did.

On the other hand, Justice Mosley’s ruling on Jan. 23, 2024, that the government’s use of the Emergencies Act was “unreasonable” is a legal decision of the Federal Court that has precedence over other courts (unless it is overruled by a higher court). We know the government will appeal.

It was a brave decision. [But as a friend pointed out it is only “brave” in the sense an airline pilot is brave when flying through turbulence – the pilot was doing his job. So too, Justice Mosley, was doing his job when going through the legal and cultural turbulence when he made the decision he did. He had to follow the law – that was his job.]

Mosley made it clear that he sympathized with “those in government who were confronted with this situation. Had I been at their tables at that time, I may have agreed that it was necessary to invoke the Act.” He was not at all a supporter of the protest, referring to it as “highly objectionable” for its “harassment of residents, workers and business owners in downtown Ottawa and the general infringement of the right to peaceful enjoyment of public spaces there.”

But despite his emotional attachment to the government and its circumstance, he held that the government’s evidence to invoke the act did not meet the high threshold of the protest being a threat to the security of Canada, as the protest “did not amount to serious violence or threats of serious violence.”

Nor did it meet the threshold of being a “national emergency.” The broad powers given to the executive by the act “is a tool of last resort,” said Mosley. It cannot be invoked “because it is convenient, or because it may work better than other tools at their disposal or available to the provinces.” He noted that it was “clear that the majority of the provinces were able to deal with the situation.”

“[T]here was no national emergency justifying the invocation of the Emergencies Act and the decision to do so was therefore unreasonable and ultra vires.”

Not only did he find the government’s action unlawful, but he also held it unconstitutional as it violated the freedom of thought, belief, opinion, and expression, and he held that the freezing of bank accounts was an unreasonable search and seizure. Therefore, the government’s actions were both unlawful under the act, and unconstitutional.

This is a heavy blow against the current government’s handling of the Freedom Convoy 2022.

What is most striking about this decision is that it is in favour of the rule of law. Despite his personal qualms, Justice Mosley had no choice but to follow the law. He wrote: “This Court may share the views of those who think that a definition designed to constrain the investigative actions of the security service is ill-suited to serve as a threshold for the invocation of emergency powers by the GIC [Federal Cabinet]. Particularly when there may be other valid reasons for declaring an emergency such as those set out in the Proclamation and Section 58 Explanation. But the Court cannot rewrite the statute and has to take the definition as it reads.”

Now I will be the first to say that I disagree with Mosley’s hint for the government to amend the Emergencies Act to lower the threshold. I do not think for one moment that we ought to lower the definition of “threat to the security of Canada” in the act to make it easier for the government to implement it. Absolutely not! Anyone in power must be held to a very high standard when deciding to take away basic freedoms because of a peaceful protest.

Let’s be clear, the prime minister personally chose not to in any way meet with or send envoys to the protesters to alleviate their causes of concern. Instead, he doubled down. Absolute power corrupts absolutely, plain and simple.

In my view, the government’s actions only confirms the reality that threshold must remain high. We cannot ever trust anyone with absolute power.

Thus, while the rule of law fell on Feb. 14, 2022, it ALMOST fell on Jan. 23, 2024, as Mosley seriously considered giving the government a pass. It was only on his deep reflection on the arguments brought by the Canadian Civil Liberties Association and the Canadian Constitutional Foundation that he changed course. It is a remarkable admission.

“This Court can only apply the law as it finds it. It has no discretion to do otherwise,” he wrote.  Rightly so!

This is a judge, 74 years old, at the end of his career, making his magnum opus, one schooled 50 years ago in the unwavering principle of the rule of law. If only all members of the bench were so committed to this ancient principle. We await with bated breath to see what happens at the appellate level.

Views expressed in this article are opinions of the author and do not necessarily reflect the views of The Epoch Times.

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